Citation Nr: 9821285
Decision Date: 07/14/98 Archive Date: 07/23/98
DOCKET NO. 95-07 152 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana
THE ISSUES
1. Entitlement to service connection for residuals of a
right wrist injury.
2. Entitlement to service connection for residuals of a
right ankle injury.
3. Entitlement to service connection for residuals of a back
injury.
4. Entitlement to service connection for residuals of a head
injury.
5. Entitlement to service connection for a chest condition
to include bronchitis.
6. Entitlement to service connection for a skin rash.
7. Entitlement to an increased (compensable) rating for
hearing loss, right ear.
8. Entitlement to an increased rating for residuals of a
right knee injury, currently evaluated as 20 percent
disabling.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
K. J. Loring, Associate Counsel
INTRODUCTION
The veteran had active military service from May 1986 to
February 1994.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from an October 1994 rating decision from
the Department of Veterans Affairs (VA) Regional Office (RO)
in Indianapolis, Indiana.
The Board notes that in the veteran’s December 1994 Form 9,
substantive appeal, he requested a hearing before the Board.
However, a November 1996 statement from the veteran’s service
representative indicated that the veteran did not want a
Travel Board Hearing but that he wished to appear for an RO
hearing. He was scheduled for a local hearing in April 1997
but failed to appear without explanation.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that he has constant headaches, low
back pain, right wrist and right ankle problems as a result
of injuries sustained during service. He also contends that
he had a skin rash and bronchitis during service and that he
is entitled to service connection for residual effects from
the injuries, rash, and bronchitis. The veteran further
maintains that his service-connected hearing loss is
disabling to a compensable degree, and that his right knee
disability is more disabling than reflected by the currently
assigned disability rating.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran’s claims for
service connection for residuals of a right wrist injury,
right ankle injury, back injury, head injury, chest condition
to include bronchitis, and skin rash, are not well grounded.
It is the further decision of the Board that the
preponderance of the evidence is against a compensable
disability evaluation for right ear hearing loss, and against
a disability evaluation in excess of 20 percent for residuals
of a right knee injury.
FINDINGS OF FACT
1. There is no medical diagnoses of current disability of
the right wrist, right ankle, chest, including chronic
bronchitis, or skin.
2. There is no medical evidence of a nexus between current
back disability and any inservice disease or injury.
3. There is no medical evidence of a nexus between current
head disability and any inservice disease or injury.
4. Audiological examination shows that the veteran has Level
I hearing acuity in the right ear.
5. The veteran’s service-connected right knee disability is
productive of no more than a moderate impairment as
characterized by some lateral instability and pain to
palpation.
CONCLUSIONS OF LAW
1. The veteran’s claims of entitlement to service connection
for residuals of a right wrist injury, right ankle injury,
back injury, head injury, chest condition to include
bronchitis, and skin rash, are not well grounded. 38 U.S.C.A.
§ 5107(a) (West 1991).
2. The schedular criteria for a compensable disability
evaluation for right ear hearing loss have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.85,
4.87, Diagnostic Code 6100 (1997).
3. The schedular criteria for a disability evaluation in
excess of 20 percent for residuals of a right knee injury
have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991);
38 C.F.R. § 4.71a, Diagnostic Code 5257 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Service Connection
Generally, service connection may be established for a
disability resulting from personal injury suffered or disease
contracted in the line of duty or for aggravation of a
preexisting injury suffered or disease contracted within the
line of duty if the disability is not a result of the
veteran’s own willful misconduct. 38 U.S.C.A. §§ 1110, 1131;
38 C.F.R. § 3.303(a). With chronic disease shown as such in
service so as to permit a finding of service connection,
subsequent manifestations of the same chronic disease at any
later date, however remote, are service connected, unless
clearly attributable to intercurrent causes. 38 C.F.R. §
3.303(b). Service connection may also be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
However, before proceeding to the merits of the claim, the
veteran must first cross the threshold of establishing a
well-grounded claim for service connection. In this regard,
the veteran must submit evidence sufficient to justify a
belief by a fair and impartial individual that the claim is
meritorious or capable of substantiation. 38 U.S.C.A.
§ 5107(a). To satisfy the burden of establishing a well-
grounded service connection claim, there must be: a medical
diagnosis of a current disability; evidence of an incurrence
or aggravation of a disease or injury in service, as shown
through medical or, in certain circumstances, lay evidence;
and medical evidence of a nexus between the in-service injury
or disease and the current disability. Where the
determinative issue involves medical causation, competent
medical evidence showing that the claim is plausible is
required. Epps v. Gober, 126 F.3d 1464 (1997). It should
also be noted that the truthfulness of evidence is presumed
in determining whether a claim is well-grounded. King v.
Brown, 5 Vet. App. 19, 21 (1993).
Alternatively, the United States Court of Veterans Appeals
(Court) has recently indicated that a claim may be well
grounded based on application of the rule for chronicity and
continuity of symptomatology, set forth in 38 C.F.R.
§ 3.303(b). See Savage v. Gober, 10 Vet. App. 488 (1997).
The Court held that the chronicity provision applies where
there is evidence, regardless of its date, which shows that a
veteran had a chronic condition either in service or during
an applicable presumption period and that the veteran still
has such condition. That evidence must be medical, unless it
relates to a condition that the Court has indicated may be
attested to by lay observation. If the chronicity provision
does not apply, a claim may still be well grounded “if the
condition is observed during service or any applicable
presumption period, continuity of symptomatology is
demonstrated thereafter, and competent evidence relates the
present condition to that symptomatology.” Savage, 10 Vet.
App. at 498.
At the outset, the Board notes that the veteran’s service
medical records appear incomplete. There are no records
prior to 1992, and the veteran reported that he was seen for
medical treatment in 1986 and 1987. However, the RO has made
several attempts to obtain earlier records, by contacting the
National Personnel Records Center (NPRC) on at least three
occasions, contacting the veteran’s National Guard unit, and
following the Guard’s advice for locating records. All of
the RO’s efforts were to no avail. Therefore, the Board
concludes that the RO has demonstrated diligence in
attempting to obtain the veteran’s service medical records
such that it is unlikely that further search would yield any
new information.
The available service medical records document a right knee
injury after stepping into a hole in March 1992. Subsequent
records show diagnosis and treatment for an anterior cruciate
ligament tear to the right knee. The service medical records
also show that the veteran sustained a head laceration in
December 1992, when a half full 55 gallon drum fell and
struck him on the right side of the head. At the time he
complained of pain, a mild headache, and slight dizziness.
He reported no loss of consciousness or visual changes. The
medical officer noted a 6 centimeter intermittent superficial
laceration to the right side of the head. There was mild
tenderness and swelling. The neurological evaluation was
normal. The diagnosis was reported as a head laceration with
no sutures required.
In January 1993 the veteran reported chest pain and a cough
for a week. An electrocardiogram (ECG) was negative and the
diagnosis was bronchitis. In February 1993, the veteran
complained of a headache for eight days after having been hit
on the head with a hand pump seven months earlier. He
reported pain over the right frontal sinus area with
pressure. The diagnosis was probable sinus congestion. Four
days later, the veteran reported that his headache had
continued despite sinus treatment. The medical officer
diagnosed a vascular headache of the cluster type. In March
1993, the veteran reported swollen lips and a skin rash which
was determined to be a possible allergic reaction to
anesthesia. In April 1993 the veteran reported a skin rash
on his back for two days after an insect bite. The diagnosis
was urticaria. The January 1994 separation examination
report noted pes cavus, asymptomatic and a right knee with a
positive Lachman’s sign. There was no indication of any
other clinical abnormality. The veteran’s own report of
medical history noted a right knee problem, and a slight loss
of hearing. He further reported a head injury from a drum in
1992, a broken right wrist in 1986, a back problem in 1987
from lifting too much, and high arches in both feet. The
evaluating doctor reported that none of the conditions noted
required permanent profiles.
VA outpatient treatment records from August to December 1994
show treatment only for the veteran’s knee disabilities. An
August 1994 VA examination report included the veteran’s
report of history and offered diagnoses of status post
cruciate ligament tear right knee; chronic headaches,
residual from cerebral concussion; and chronic back pain,
residual from back injury.
The veteran requested further VA examination as he believed
the August 1994 evaluation inadequate for the purposes of
establishing his disabilities. He was afforded another VA
examination in December 1996. At that time, he complained of
back pain for five years, pain in both his knees, severe
headaches for five years, and pain in his right wrist and
ankle as the result of injury during service. He made no
mention of a respiratory condition, chest pain, or a skin
rash. The physical examination of the respiratory system
found the lungs clear to auscultation and percussion.
Evaluation of the musculoskeletal system revealed superficial
scars on the right knee. The back was tender to percussion
in the lumbosacral area with pain in the same area on raising
the right leg. The neurological evaluation was normal.
Radiographs of the chest revealed atheromatous changes of the
aorta with no active focal lung changes. The right wrist and
right ankle radiographs were normal. Radiographs of the
lumbosacral spine showed a possible early fracture of the
pars interarticulare at L5-S1. Sinus films showed mucosal
thickening in both maxillary sinuses, and the radiologist
noted that an acute sinus condition could not be ruled out.
The VA neurologist evaluating the veteran’s headaches
reported a diagnosis of moderate, severe, tension type
headache, fairly localized to left frontal area. The
neurologic examination was normal.
After reviewing the evidence currently of record, the Board
must conclude that the veteran’s various service connection
claims are not well grounded. With regard to the right
wrist, right ankle, chest (to include bronchitis) and skin
rash claims, there is no medical diagnoses of current
disability. Therefore, despite the veteran’s contentions
(accepted as true) and service medical records (which
document some of the claimed injuries), the VA examination in
December 1996 revealed no current disabilities related to
residuals of injuries to the right wrist, right ankle,
respiratory problems and a skin rash. Significantly,
clinical and radiological examination showed the respiratory
system to be normal. Right wrist and right ankle x-ray were
likewise interpreted as normal. There was no medical
evidence of any skin rash. Accordingly, it must be assumed
that the inservice problems with these disorders were acute
and resolved without leaving residual disability. Therefore,
these claims must be viewed as not well grounded for lack of
medical diagnoses of current disability. Although the
veteran report symptoms he perceives to be manifestations of
disability, the question of whether a chronic disability is
currently present is one which requires skill in diagnosis,
and questions involving diagnostic skills must be made by
medical experts. Espiritu v. Derwinski, 2 Vet.App. 492
(1992).
With regard to the claims pertinent to residuals of a back
injury and a head injury, the Board notes that there is
medical evidence that the veteran currently suffers from
headaches, and the Board accepts this evidence as indicative
of a medical diagnosis of current disability. There is also
clinical evidence of back symptomatology and some suggestion
of a low back irregularity shown on x-ray. Thus, for
purposes of determining the well groundedness of these
claims, the Board finds that there is competent evidence of
current disability.
However, the residuals of head injury and back injury claims
must also be viewed as not well grounded since there is no
medical evidence linking any current disorders of the low
back and head to the veteran’s service or any injuries
suffered therein. There is no medical evidence of a
continuity of symptomatology to related them to service.
Indeed, the report of the veteran’s discharge examination in
January 1994 shows that the veteran’s spine was clinically
evaluated as normal, and the available service records do not
otherwise contain any medical findings of back disability.
With regard to the claimed head injury, headaches were noted
in service, but no findings related to a head injury were
reported on clinical examination in January 1994, and it
appears that post-service medical findings relate the
veteran’s headaches to tension rather than to any inservice
head injury. The Board notes the August 1994 VA examination
diagnoses which appear to relate both the veteran’s headaches
and his back pain to injuries during service, but it is clear
that these references were arrived at based solely on history
provided by the veteran. As such, the August 1994 diagnoses
do not constitute competent evidence to establish the
necessary nexus to service. Additionally, there is no
medical opinion linking the continuity of low back and head
symptoms reported by the veteran to any current disabilities
so as to otherwise well ground these claims under Savage.
To summarize, the competent evidence currently before the
Board shows no disability involving the veteran’s right
wrist, right ankle, or chest. The bronchitis shown during
service was resolved without evidence of residual at
separation. Moreover, there is no current diagnosis of any
bronchial condition. There is medical evidence of a possible
fracture involving the lumbosacral spine, but this does not
constitute a clear diagnosis, nor is there any medical
evidence that it is related to service. The veteran’s head
injury during service resulted in a superficial laceration
without medical findings of concussion or residual trauma.
The headaches that have reportedly occurred since service
have been attributed to tension and are not related to any
incident of service. There was a single occurrence of
urticaria during service without subsequent treatment or
diagnosis and there is no current complaint or clinical
finding regarding a skin rash.
The Board recognizes that the aforementioned claims are being
disposed of in a manner that differs from that used by the
RO. The RO denied the veteran’s claims on the merits, while
the Board has concluded that the claims are not well
grounded. However, the Court has held that “when an RO does
not specifically address the question whether a claim is well
grounded but rather, as here, proceeds to adjudication on the
merits, there is no prejudice to the veteran solely from the
omission of the well-grounded analysis.” Meyer v. Brown, 9
Vet. App. 425, 432 (1996).
As the foregoing discussion explains the need for a medical
diagnosis of current disability which is linked to service by
medical evidence, the is hereby informed of the elements
necessary to complete his application for service connection
for the claimed disability. Robinette v. Brown, 8 Vet. App.
69, 77 (1995).
II. Increased Ratings
Preliminarily, the Board finds that the veteran’s claims are
well grounded within the meaning of 38 U.S.C.A. § 5107(a).
When a veteran is seeking an increased rating (as opposed to
entitlement to service connection), an assertion of an
increase in severity is sufficient to render the increased
rating claim well-grounded. Proscelle v. Derwinski, 2 Vet.
App. 629, 632 (1992).
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155. Separate diagnostic
codes identify the various disabilities. Where entitlement
to compensation has been established and an increase in the
disability rating is at issue, it is the present level of
disability that is of primary concern. Francisco v. Brown, 7
Vet. App. 55, 58 (1994).
A. Right Ear Hearing Loss
The veteran was granted service connection for right ear
hearing loss effective from the date of separation from
service. The service connection is based upon a 1992
audiogram which showed decreased hearing in the right ear at
4000 Hertz.
In conjunction with his claim for an increased rating, he was
afforded a VA audiological examination in December 1996 which
showed the following pure tone thresholds, in decibels:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
5
5
10
45
LEFT
5
5
5
5
0
Puretone threshold averages were reported to be 16 Hertz for
the right ear. Speech audiometry revealed speech recognition
ability of 100 percent for the right ear. The diagnosis was
mild sensorineural hearing loss in the right ear from 4000Hz
–8000Hz with excellent speech discrimination.
The veteran is currently assigned a noncompensable disability
evaluation for right ear hearing loss, based upon the
mechanical application of the rating schedule to the reported
1996 VA audiological evaluation. Lendenmann v. Principi, 3
Vet. App. 345, 349 (1992).
Evaluations of defective hearing for VA rating purposes range
from non-compensable to 100 percent. The evaluation is based
upon organic impairment of hearing acuity as measured by the
results of controlled speech discrimination tests together
with the average hearing threshold level as measured by pure
tone audiometry tests in the frequencies 1000, 2000, 3000 and
4000 cycles per second. To evaluate the degree of disability
in service connected defective hearing, the revised rating
schedule establishes 11 auditory acuity levels, designated
from level I for essentially normal acuity through level XI
for profound deafness. 38 C.F.R. § 4.85 and Part 4, Codes
6100 to 6110. Where hearing loss in only one ear is service
connected, the hearing in the non service connected ear is
considered normal for VA rating purposes, in the absence of
total deafness. 38 C.F.R. § 3.383 (1997).
The audiometric findings of the December 1996 1995 VA
examination corresponds to Level I hearing in the veteran’s
right ear. The findings are commensurate with the
noncompensable schedular evaluation presently assigned to the
veteran’s right ear. 38 C.F.R. § 4.85, Diagnostic Code 6100.
Accordingly, a compensable disability evaluation for
defective hearing in the right ear is not warranted.
B. Residual Right Knee Injury
The veteran was granted service connection for residuals of a
right knee injury which resulted in a tear in the anterior
cruciate ligament of the right knee, effective February 1994.
He is currently assigned a 20 percent disability evaluation.
Service medical records show that the veteran underwent
arthroscopic surgery of his right knee in March 1992 to
remedy the torn cruciate ligament. At the time of his
separation examination report in January 1994, he was noted
to have a positive Lachman’s sign and he was complaining of
continued difficulty with his right knee.
A VA examination report of August 1994 reflected the
veteran’s complaints of swelling, pain, occasional
“buckling,” and limited motion of his right knee. Physical
examination revealed arthroscopic puncture scars of the right
knee. Range of motion study showed flexion to 45 degrees and
extension to zero degrees, with evidence of swelling and
effusion. The examiner reported a diagnosis of status post
cruciate ligament tear, right knee, with persistent effusion,
limitation of flexion, and pain and instability.
VA outpatient treatment records show that the veteran had
continued complaints of pain and swelling of the right knee
subsequent to a re-injury in August 1994. A November 1994
magnetic resonance imaging (MRI) of the right knee revealed
an oblique tear through the posterior horn of the medial
meniscus and a chronic anterior cruciate ligament tear. A
December 1994 statement from a VA physician noted that the
veteran was scheduled for arthroscopic surgery for removal of
a torn cartilage and that he would be on crutches for three
to four days. Subsequent VA outpatient records reveal that
the veteran canceled his surgery.
During the VA examination of December 1996, the veteran’s
right knee was evaluated by two physicians. Generally noted
were his complaints of an unstable right knee with pain in
both knees after long standing. He also reported occasional
“buckling” with pain but no falls. He wore an ACL brace
that offered no relief and he stated his interest in having
his right knee reconstructed. Physical examination revealed
superficial scars of the right knee secondary to arthroscopy.
There was minimal swelling and tenderness at the medial
aspect of the right knee. There was no tenderness along the
joint line or parapatellar area and no patellar instability.
The Lachman’s sign was positive, as was the anterior drawer.
One examiner found that the right knee showed weakened
movement against moderate resistance with lateral
instability. He noted that the veteran able to flex his knee
to 90 degrees with extension to zero degrees. A second
examiner reported full range of motion of the right knee with
flexion and extension to 130 degrees bilaterally. Although
the schedule of ratings indicates that full flexion of the
knee is to 140 degrees, (see 38 C.F.R. § 4.71a, Plate II),
this examiner found abduction, adduction, and stress testing
was negative, as was McMurray’s test. Radiographs showed no
significant degenerative changes and no effusion. There was
a questionable foreign body in the soft tissues posterior to
the distal femur versus artifact. The reported diagnosis was
anterior cruciate ligament insufficiency without symptoms of
instability with activities of daily living, but positive
medial parapatellar pain by history; tendonitis.
The veteran’s right knee disability has been evaluated
pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257, which
refers to recurrent subluxation or lateral instability.
Under this particular code, a moderate impairment is
indicative of a 20 percent evaluation and a severe impairment
is indicative of a 30 percent evaluation.
In reviewing the evidence of record, the Board concludes that
the veteran’s right knee disability is productive of no more
than a moderate impairment as characterized by some
instability and parapatellar pain. Although the final VA
diagnosis of December 1994 noted no symptoms of instability,
one of the examiners did report some lateral instability and
the Board accepts that finding. With regard to the level of
severity, the Board notes that while the veteran’s right knee
demonstrated only 130 degrees of flexion, the examiner
compared it with the left knee and found full range of motion
bilaterally. Radiographs revealed no evidence of arthritic
changes that would warrant evaluation according to Diagnostic
Code 5010, which refers to degenerative arthritis; moreover,
there is no basis for a rating in excess of 20 percent under
Diagnostic Code 5260 or 5261.
The Board notes that based upon a November 1994 MRI, there is
evidence of a torn medial meniscus in addition to the chronic
cruciate ligament tear. However, the maximum rating
available for a symptomatic condition is 20 percent under
Diagnostic Code 5258.
With respect to the veteran’s complaints of pain, the Board
has considered the provisions of 38 C.F.R. §§ 4.40 and 4.45
and their application here as they relate to functional loss
and pain on movement. There is objective evidence of pain to
palpation and with motion, but no objective indication of
limitation of motion due to the pain. Nor is there evidence
of additional pathology, or weakness beyond that already
contemplated in the schedular criteria, such that a
disability evaluation in excess of 20 percent would be
warranted. See DeLuca v. Brown, 8 Vet. App. 202 (1995);
Johnston v. Brown, 10 Vet.App. 80, 85 (1997).
As there is no evidence in relative equipoise, regarding the
veteran’s right knee disability, the doctrine of reasonable
doubt is not for application. 38 U.S.C.A. § 5107(b); Gilbert
v. Derwinski, 1 Vet. App. 49, 54 (1990).
ORDER
The veteran’s claims of entitlement to service connection for
residuals of a right wrist injury, right ankle injury, back
injury, head injury, chest condition to include bronchitis,
and skin rash, are not well grounded. Entitlement to a
compensable disability evaluation for right ear hearing loss
is not warranted. Entitlement to a disability evaluation in
excess of 20 percent for residuals of a right knee injury is
not warranted. The appeal is denied.
ALAN S. PEEVY
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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